AG: Audit release would hamper probe, ‘fatally undermine’ law

New Mexico In Depth and the Las Cruces Sun-News are suing to try to win public disclosure of the entire audit, which is nearly 400 pages. To date, most of it has been kept secret. Some portions have been released, but, like the page in this screen shot, even some of what's been released is heavily redacted.

The state can withhold an audit of 15 health providers under investigation for potential Medicaid fraud because such secrecy is necessary to protect the criminal probe, the Attorney General’s Office says.

Scott Fuqua, an assistant attorney general, made the argument in a brief filed this week in district court in Las Cruces. New Mexico In Depth and the Las Cruces Sun-News are suing the state’s Human Service Department (HSD) to try to win release of the audit. They argue that the law enforcement exception in the state’s Inspection of Public Records Act doesn’t allow withholding the document.

The Attorney General’s Office (AG), which is representing HSD in the case, disagrees.

“To require public disclosure of such information would fatally undermine the law enforcement exception, as it would unduly interfere with the AGO’s ongoing criminal investigation,” Fuqua’s brief states.

The news organizations are scheduled to respond to Fuqua’s brief by Nov. 12. An evidentiary hearing, at which witnesses can be called, is scheduled for Nov. 21 in front of Chief District Judge Douglas R. Driggers in Las Cruces.

A private company, Boston-based Public Consulting Group, conducted the nearly 400-page audit for HSD, which later gave the document to the AG for investigation. Even though a law enforcement agency did not conduct the audit, it’s the nature of the information in the audit, not the “identity of the person holding it,” that matters, Fuqua argues.

The law enforcement exception allows withholding documents that reveal “confidential sources, methods, information, or individuals accused but not charged with a crime.” That includes “evidence in any form received or compiled in connection with a criminal investigation or prosecution by a law enforcement agency or prosecuting agency…”

The agencies have released portions of the audit but withheld the meat of the document – hundreds of pages that detail specific findings against each of the providers that were audited. Fuqua states in his brief that the withheld portions of the audit “identify specific witnesses, specific compliance issues, and the specific methodology by which the audit investigated potential issues, including possible Medicaid fraud.”

Making the audit’s methodology public would create “an opportunity to cover tracks through the alteration or destruction of key records,” Fuqua argues. Similarly, he states that releasing the portion of the audit that details specific findings would provide “too great an opportunity for the cleansing of records that would otherwise lead to criminal culpability.”

There’s little case law in New Mexico to back up or refute Fuqua’s argument. His brief relies on rulings from state courts in California, Illinois and Florida. For example, one 2009 California Appeals Court ruling states that California’s law enforcement exception “protects witnesses, victims, and investigators, secures evidence and investigative techniques, encourages candor, recognizes the rawness and sensitivity of information in criminal investigations, and in effect makes such investigations possible.”

HSD used the audit earlier this year to justify freezing Medicaid payments to the 15 health organizations that provide services like drug treatment and suicide counseling to an estimated 30,000 New Mexicans. That forced most of those providers, including three that operate in Las Cruces – Southwest Counseling Center, Families and Youth, and TeamBuilders – to hand over Medicaid-funded services to Arizona providers the state brought in to fill the gap.

The news organizations hope to win release of the audit so they can do reporting to help New Mexicans understand the allegations against the providers, the reasons the state chose to freeze Medicaid payments, and the fallout of that decision. The New Mexico Foundation for Open Government has also filed a lawsuit to try to win release of the audit.

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In June, Gov. Susana Martinez's administration decided to freeze Medicaid funding to 15 health organizations after an audit found problems including overbilling and potential fraud and asked the attorney general to investigate. New Mexico In Depth has been covering the fallout.

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